21 December 2005


Yesterday's decision on Inscrutable Design represents one aspect of the rule of law. Sadly, the steadily more disturbing nonsense concerning the Administration's cavalier disregard for the law concerning wiretap authorization represents perhaps the best reason to rely upon the rule of law: The virtual certainty that any other conception will eventually subordinate principle to expediency.

It's bad enough when one must set up a super-secret court to handle what should be a relatively routine inquiry: Obtaining a search warrant. After all, the requirements for a search warrant are not particularly onerous: a demonstration before a judicial official—without any opposition, cross-examination, or further inquiry—that it is reasonably probable that evidence concerning a criminal offense will be found in a particular (but nonetheless somewhat vague) location at a given (and particularly vague) time. The accompanying affidavit need not reveal the particular sources of information, or even a great deal of specificity concerning the information itself; a sworn statement that the particular reasons come from confidential source(s) with a track record of reliability is good enough.

It's even worse when one of the judges of that super-secret court feels compelled to resign after he "privately expressed deep concern that the warrantless surveillance program authorized by the president in 2001 was legally questionable and may have tainted the FISA court's work." According to that same article, the presiding judge had already required the DoJ to certify that it wasn't bootstrapping its way into wiretapping warrants with evidence obtained from "discretionary" wiretaps. Unfortunately, this looks like it will be turned into either an actual partisan battle, or at least the appearance of one. Judge Robertson (who just resigned) is a Clinton appointee; the Congressional figures who have spoken out thus far have been Democrats; however, John McCain, a Republican who has shown great skepticism of unfettered information-gathering (and not just on the torture issue), has resorted to the old "you shouldn't have revealed it in public without letting us deal with it in smoky back rooms" criticism of Democratic alarums.

As Leo McGarry (the late John Spencer) implied, the reflection possible now is distinct from whether Democrats did (or did not) support a war effort based upon questionable premises.

I fought a jungle war. I'm not doing it again. If I could put myself anywhere in time it would be in the cabinet room on August 4th 1964, when our ships were attacked by North Vietnam in the Tonkin Gulf. I'd say, "Mr. President, don't do it. You're considering the commitment of a massive number of troops and throwing in our lot with torturers and panderers, leaders without principles and soldiers without conviction, with no clear mission and no end in sight."

Certainly some Democrats voted in favor of attacking Iraq, and of granting essentially dictatorial powers to the President in response to a perceived assault on American sovereignty. They're going to have to live with those votes. That does not, however, mean that we ignore the questions they raise now, when they know more of what is (and was) going on, on the basis that they already voted once. It means even less that we can criticize them for raising those questions now when new (or at least new to them) information has changed their minds. That is precisely the opposite of the rule of law.